On November 7 the Supreme Court will once again examine the President's power to make high-level appointments without Senate confirmation, and once again it is the NLRB that lands in the cross-hairs. NLRB v. SW General Inc [Supreme Court briefs].

This is a big deal for the NLRB, but please note that many officials in other government agencies have served in "acting" positions in situations quite similar to the one involved in this case, so the ripple effect of the Supreme Court's decision will be felt in many other agencies.

This is a statutory case, not a constitutional case. The National Labor Relation Act says that the NLRB's General Counsel is to be appointed by the President with the advice and consent of the Senate. When a GC vacancy arose in 2010, the President appointed Lafe Solomon to serve as the Acting GC, citing the authority of the Federal Vacancies Reform Act of 1998. He served from June 21, 2010 to November 4, 2013. The President twice sent Solomon's nomination to the Senate, but ultimately he never got confirmed. So the question is whether Solomon properly served within the confines of the Federal Vacancies Reform Act.

The case comes from the DC Circuit, which held that the appointment was in violation of the FVRA and that an unfair labor practice complaint issued during his tenure was unauthorized. SW General v. NLRB (DC Cir 08/07/2015) [Opinion text].

Many important government posts must be filled by persons who are nominated by the President and confirmed by the Senate. The Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. 3345 et seq., provides that when such an office is vacant, its functions and duties may be performed temporarily in an acting capacity by either the first assistant to the vacant post, under Section 3345(a)(1); a Senate confirmed official occupying another office in the Executive Branch who is designated by the President under Section 3345(a)(2); or a senior official in the same agency designated by the President under Section 3345(a)(3).

Section 3345(b) of the FVRA provides as a general rule that "[n]othwithstanding subsection (a)(1),"a person who is nominated to fill a vacant office that is subject to the FVRA may not perform the office's functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy. 5 U.S.C. 3345(b).

The question presented is whether the precondition in 5 U.S.C. 3345(b)(1) on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis applies only to first assistants who take office under Subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under Subsections (a)(2) and (a)(3).

SW General relies on FVRA section 3345(b)(1), which provides that, "notwithstanding" subsection 3345(a)(1), a person nominated to fill a vacant position requiring Senate confirmation "may not perform the office's functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy."

The government's position is that subsection 3345(b)(1) applies only to first assistants who serve in an acting capacity under subsection 3345(a)(1), and does not limit the president's ability to nominate a person who is serving in an acting capacity pursuant to subsections 3345(a)(2) or (a)(3). And in its reply brief [Brief text] the government relies quite heavily on the argument that "we've always done it this way."

The DC Circuit sided with SW General, holding that the restrictions stated in section 3345(b)(1) apply to all acting officials named pursuant to section 3345(a).